E. System of Records

1. Disclosure: Subsection (b)

With varying degrees of clarity, the courts generally have ruled that a disclosure in violation of subsection (b) does not occur unless the plaintiff's record was actually retrieved by reference to his name or personal identifier. See, e.g., Barhorst v. Marsh, 765 F. Supp. 995, 999-1000 (E.D. Mo. 1991) (Privacy Act claim under subsection (b) dismissed on alternative grounds where record retrieved by job announcement number, not by individual's name; noting that "'mere potential for retrieval' by name or other identifier is insufficient to satisfy the 'system of records' requirement") (quoting Fagot v. FDIC, 584 F. Supp. 1168, 1175 (D.P.R. 1984), aff'd in part & rev'd in part, 760 F.2d 252 (1st Cir. 1985) (unpublished table decision)). But see Wall v. IRS, No. 1:88-CV-1942, 1989 U.S. Dist. LEXIS 9427, at **4-7 (N.D. Ga. July 5, 1989) (because agency official retrieved applicant's folder by name from file maintained under vacancy announcement number, records were kept within "system of records" and thus subsection (b) was applicable).

Several courts have stated that the first element a plaintiff must prove in a wrongful disclosure suit is that the information disclosed is a record within a system of records. See Quinn v. Stone, 978 F.2d 126, 131 (3d Cir. 1992); Kinchen v. United States Postal Serv., No. 90-1180, slip op. at 5 (W.D. Tenn. June 17, 1994); Hass v. United States Air Force, 848 F. Supp. 926, 932 (D. Kan. 1994); Swenson v. United States Postal Serv., No. S-87-1282, 1994 U.S. Dist. LEXIS 16524, at **14-15 (E.D. Cal. Mar. 10, 1994); see also Davis v. Runyon, No. 96-4400, 1998 WL 96558, at **4-5 (6th Cir. Feb. 23, 1998) (affirming district court's dismissal of Privacy Act wrongful disclosure claim where appellant had failed to allege any facts as to whether "'information' was a 'record' contained in a 'system of records,'" whether it was "disclos[ed] within the meaning of the Act," whether disclosure had "adverse effect," or whether disclosure was "willful or intentional"); Doe v. United States Dep't of the Interior, No. 95-1665, slip op. at 2-5 (D.D.C. Mar. 11, 1996) (alleged disclosure that plaintiff was HIV positive and had been treated for AIDS-related illnesses was not violation of Privacy Act because "[w]hile it appears to be true that some breach in confidentiality occurred . . . plaintiff cannot show that the breach stemmed from an improper disclosure of plaintiff's personnel records"); Mittleman v. United States Dep't of the Treasury, 919 F. Supp. 461, 468 (D.D.C. 1995) ("statement of general provisions of law" that was "not a disclosure of information retained in the [agency's] records on plaintiff . . . does not implicate the general nondisclosure provisions of the Privacy Act"), aff'd in part & remanded in part on other grounds, 104 F.3d 410 (D.C. Cir. 1997).

In fact, the Court of Appeals for the First Circuit has held that a complaint that fails to allege a disclosure from a "system of records" is facially deficient. Beaulieu v. IRS, 865 F.2d 1351, 1352 (1st Cir. 1989); see also Whitson v. epartment of the Army, No. SA-86-CA-1173, slip op. at 8-12 (W.D. Tex. Feb. 25, 1988); Bernson v. ICC, 625 F. Supp. 10, 13 (D. Mass. 1984). But see Sterling v. United States, 798 F. Supp. 47, 49 (D.D.C. 1992) (individual "not barred from stating a claim for monetary damages [under (g)(1)(D)] merely because the record did not contain 'personal information' about him and was not retrieved through a search of indices bearing his name or other identifying characteristics"); see also Sterling v. United States, 826 F. Supp. 570, 571-72 (D.D.C. 1993) (subsequent opinion), summary affirmance granted, No. 93-5264 (D.C. Cir. Mar. 11, 1994); cf. Krieger v. Fadely, No. 99-5311, 2000 WL 489428, at **1-2 (D.C. Cir. May 5, 2000) (holding that complaint that alleged wrongful disclosure of records "subject to protection under the Privacy Act," "alleged the essential elements of [plaintiff's] claim and put the government on notice," and that "[n]othing more was required to survive a motion to dismiss for failure to state a claim"; "If his lawsuit went forward, there would come a time when [plaintiff] would have to identify the particular records [defendant] unlawfully disclosed. But that point surely was not as early as the pleading stage.").

Thus, it has frequently been held that subsection (b) is not violated when a dissemination is made on the basis of knowledge acquired independent of actual retrieval from an agency's system of records (such as a disclosure purely from memory), regardless of whether the identical information also happens to be contained in the agency's systems of records. The leading case articulating the "actual retrieval" and "independent knowledge" concepts is Savarese v. HEW, 479 F. Supp. 304, 308 (N.D. Ga. 1979), aff'd, 620 F.2d 298 (5th Cir. 1980) (unpublished table decision), in which the court ruled that for a disclosure to be covered by subsection (b), "there must have initially been a retrieval from the system of records which was at some point a source of the information." 479 F. Supp. at 308. In adopting this stringent "actual retrieval" test, the court in Savarese reasoned that a more relaxed rule could result in excessive governmental liability, or an unworkable requirement that agency employees "have a pansophic recall concerning every record within every system of records within the agency." Id.

There are numerous subsection (b) cases that follow Savarese and apply the "actual retrieval" and "independent knowledge" concepts in varying factual situations. See, e.g., Kline v. HHS, 927 F.2d 522, 524 (10th Cir. 1991); Manuel v. VA Hosp., 857 F.2d 1112, 1119-20 (6th Cir. 1988); Thomas v. United States Dep't of Energy, 719 F.2d 342, 344-46 (10th Cir. 1983); Boyd v. Secretary of the Navy, 709 F.2d 684, 687 (11th Cir. 1983) (per curiam); Doyle v. Behan, 670 F.2d 535, 538-39 & n.5 (5th Cir. 1982) (per curiam); Hanley v. United States Dep't of Justice, 623 F.2d 1138, 1139 (6th Cir. 1980) (per curiam); Fisher v. NIH, 934 F. Supp. 464, 473-74 (D.D.C. 1996) (plaintiff failed to demonstrate that individuals who disclosed information learned it from investigatory file or through direct involvement in investigation), summary affirmance granted, No. 96-5252 (D.C. Cir. Nov. 27, 1996); Balbinot v. United States, 872 F. Supp. 546, 549-51 (C.D. Ill. 1994); Coakley v. United States Dep't of Transp., No. 93-1420, 1994 U.S. Dist. LEXIS 21402, at **2-3 (D.D.C. Apr. 7, 1994); Swenson, No. S-87-1282, 1994 U.S. Dist. LEXIS 16524, at **19-22 (E.D. Cal. Mar. 10, 1994); Gibbs v. Brady, 773 F. Supp. 454, 458 (D.D.C. 1991); McGregor v. Greer, 748 F. Supp. 881, 885-86 (D.D.C. 1990); Avant v. Postal Serv., No. 88-T-173-S, slip op. at 4-5 (M.D. Ala. May 4, 1990); Howard v. Marsh, 654 F. Supp. 853, 855 (E.D. Mo. 1986); Krowitz v. USDA, 641 F. Supp. 1536, 1545 (W.D. Mich. 1986), aff'd, 826 F.2d 1063 (6th Cir. 1987) (unpublished table decision); Blanton v. United States Dep't of Justice, No. 82-0452, slip op. at 4-5 (D.D.C. Feb. 17, 1984); Sanchez v. United States, 3 Gov't Disclosure Serv. (P-H)  83,116, at 83,708-09 (S.D. Tex. Sept. 10, 1982); Golliher v. United States Postal Serv., 3 Gov't Disclosure Serv. (P-H)  83,114, at 83,703 (N.D. Ohio June 10, 1982); Thomas v. United States Dep't of the Navy, No. C81-0654-L(A), slip op. at 2-3 (W.D. Ky. Nov. 4, 1982), aff'd, 732 F.2d 156 (6th Cir. 1984) (unpublished table decision); Olberding v. DOD, 564 F. Supp. 907, 913 (S.D. Iowa 1982), aff'd per curiam, 709 F.2d 621 (8th Cir. 1983); Balk v. United States Int'l Communications Agency, No. 81-0896, slip op. at 2-4 (D.D.C. May 7, 1982), aff'd, 704 F.2d 1293 (D.C. Cir. 1983) (unpublished table decision); Johnson v. United States Dep't of the Air Force, 526 F. Supp. 679, 681 (W.D. Okla. 1980), aff'd, 703 F.2d 583 (Fed. Cir. 1981) (unpublished table decision); Carin v. United States, 1 Gov't Disclosure Serv. (P-H)  80,193, at 80,491-92 (D.D.C. Aug. 5, 1980); Jackson v. VA, 503 F. Supp. 653, 655-57 (N.D. Ill. 1980); King v. Califano, 471 F. Supp. 180, 181 (D.D.C. 1979); Greene v. VA, No. C-76-461-S, slip op. at 6-7 (M.D.N.C. July 3, 1978); see also Stephens v. TVA, 754 F. Supp. 579, 582 (E.D. Tenn. 1990) (comparing Olberding and Jackson and noting "confusion in the law with respect to whether the Privacy Act bars the disclosure of personal information obtained indirectly as opposed to directly from a system of records"); cf. Rice v. United States, 166 F.3d 1088, 1092 n.4 (10th Cir. 1999) (in action for wrongful disclosure in violation of tax code, noting that plaintiff similarly had no Privacy Act claim for IRS's disclosure in press releases of information regarding plaintiff's criminal trial and conviction because information disclosed was procured by agency public affairs officer through review of indictment and attendance at plaintiff's trial and sentencing); Smith v. Henderson, No. C-96-4665, 1999 WL 1029862, at **6-7 (N.D. Cal. Oct. 29, 1999) (although finding no evidence of existence of written record retrieved from system of records, finding further that alleged disclosure was made from information "obtained independently of any system of records") (appeal pending); Viotti v. United States Air Force, 902 F. Supp. 1331, 1338 (D. Colo. 1995) ("Section 552a(b) contemplates a 'system of records' as being the direct or indirect source of the information disclosed" and although agency employee admitted disclosure of information to press "based on personal knowledge," plaintiff "was obligated to come forward with some evidence indicating the existence of a triable issue of fact as to the identity of the 'indirect' source" of disclosure to press), aff'd, 153 F.3d 730 (10th Cir. 1998) (unpublished table decision); Mittleman, 919 F. Supp. at 469 (although no evidence indicated that there had been disclosure of information about plaintiff, even assuming there had been, information at issue would not have been subject to restrictions of Privacy Act because "it was a belief . . . derived from conversations . . . and which was acquired independent from a system of records"); Doe v. United States Dep't of the Interior, No. 95-1665, slip op. at 4-5 (D.D.C. Mar. 11, 1996) (where plaintiff could "not show that the breach [in confidentiality] stemmed from an improper disclosure of [his] records," stating further that "[t]his is especially true in light of the fact that several other employees knew of, and could have told . . . of, plaintiff's illness").

However, the Court of Appeals for the District of Columbia Circuit, in Bartel v. FAA, 725 F.2d 1403, 1408-11 (D.C. Cir. 1984), suggested that the "actual retrieval" standard is inapplicable where a disclosure is undertaken by agency personnel who had a role in creating the record that contains the released information. This particular aspect of Bartel has been noted with approval by several other courts. See Manuel, 857 F.2d at 1120 & n.1; Pilon v. United States Dep't of Justice, 796 F. Supp. 7, 12 (D.D.C. 1992) (denying agency's motion to dismiss or alternatively for summary judgment where information "obviously stem[med] from confidential Department documents and oral statements derived therefrom"); Kassel v. VA, 709 F. Supp. 1194, 1201 (D.N.H. 1989); Cochran v. United States, No. 83-216, slip op. at 9-13 (S.D. Ga. July 2, 1984), aff'd, 770 F.2d 949 (11th Cir. 1985); Fitzpatrick v. IRS, 1 Gov't Disclosure Serv. (P-H)  80,232, at 80,580 (N.D. Ga. Aug. 22, 1980), aff'd in part, vacated & remanded in part, on other grounds, 665 F.2d 327 (11th Cir. 1982). But cf. Abernethy v. IRS, 909 F. Supp. 1562, 1570 (N.D. Ga. 1995) (holding that alleged statements made to other IRS employees that plaintiff was being investigated pertaining to allegations of EEO violations, assuming they were in fact made, did not violate the Act "because information allegedly disclosed was not actually retrieved from a system of records" even though individual alleged to have made such statements was same individual who ordered investigation), aff'd per curiam, No. 95-9489 (11th Cir. Feb. 13, 1997).

In particular, the Court of Appeals for the Ninth Circuit held that an Administrative Law Judge for the Department of Health and Human Services violated the Privacy Act when he stated in an opinion that one of the parties' attorneys had been placed on a Performance Improvement Plan (PIP) while he was employed at HHS--despite the fact that there was no actual retrieval by the ALJ--because, as the creator of the PIP, the ALJ had personal knowledge of the matter. Wilborn v. HHS, 49 F.3d 597, 600-02 (9th Cir. 1995). The Ninth Circuit noted the similarity of the facts to those of Bartel and held that "'independent knowledge,' gained by the creation of records, cannot be used to sidestep the Privacy Act." Id. at 601. Additionally, it rejected the lower court's reasoning that not only was there no retrieval, but there was no longer a record capable of being retrieved because as the result of a grievance action, all records relating to the PIP had been required to be expunged from the agency's records and in fact were expunged by the ALJ himself. Id. at 599-602. The Ninth Circuit found the district court's ruling "inconsistent with the spirit of the Privacy Act," and stated that the "fact that the agency ordered expungement of all information relating to the PIP makes the ALJ's disclosure, if anything, more rather than less objectionable." Id. at 602.

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